In re Marriage of Schoen

2026 IL App (1st) 251193-U

• Court: Appellate Court of Illinois
• Decided: February 5, 2026
• Docket: 1-25-1193
• Status: Unpublished

Opinion

2026 IL App (1st) 251193-U

FOURTH DIVISION Order filed: February 5, 2026

No. 1-25-1193

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

IN RE: THE MARRIAGE OF ) Appeal from the ) Circuit Court of JOHN SCHOEN, ) Cook County. ) Petitioner-Appellee, ) ) No. 2022 D 3108 and ) ) MICHELLE SCHOEN, ) Honorable ) Michael Forti, Respondent-Appellant. ) Judge, presiding.

JUSTICE QUISH delivered the judgment of the court. Justices Lyle and Ocasio concurred in the judgment.

ORDER

¶ 1 Held: The circuit court properly dismissed the respondent’s counter-petition for dissolution of marriage for lack of subject matter jurisdiction as neither party satisfied the residency requirement in section 401(a) of the Illinois Marriage and Dissolution of Marriage Act. The circuit court’s finding that respondent abandoned her Illinois residency by the time the petition for dissolution was filed was not against the manifest weight of the evidence. Petitioner was entitled to voluntarily dismiss his own petition for dissolution.

¶2 Respondent Michelle Schoen (“Michelle”) appeals from the order of the circuit court of

Cook County, which, inter alia, granted the motions of petitioner John Schoen (“John”) to No. 1-25-1193

voluntarily dismiss his petition for dissolution of marriage and dismissed Michelle’s counter-

petition. The circuit court held that it lacked subject matter jurisdiction over this case because the

parties failed to comply with the residency requirement in section 401(a) of the Illinois Marriage

and Dissolution of Marriage Act (“Act”) (750 ILCS 5/401(a) (West 2024)). For the following

reasons, we affirm. 1

¶3 The parties were married in 2012 in Illinois and have one child, J.S., who was born in 2013.

During the parties’ marriage and until at least March 2022, they lived in Illinois. On April 18,

2022, John, through counsel, filed a verified petition for dissolution of marriage in the circuit court

of Cook County. John alleged that both he and Michelle were residents of Illinois. On May 5,

2022, Michelle, also through counsel, filed a verified response where she admitted John’s

allegations of both her and John’s Illinois residency. She filed a verified counter-petition for

dissolution of marriage, alleging that she was a resident of Illinois “at this time and 90 days prior

to the filing of this Counter-Petition.” She alleged that John “availed himself to the jurisdiction of

Illinois but was also a resident of the State of Illinois 90 days prior to the filing of this Counter-

Petition.”

¶4 In August 2022, the parties, through counsel, entered an agreed Allocation Judgment,

setting a parenting schedule and allocating parental decision-making for J.S. The Allocation

Judgment provided that J.S. would attend school in the school district in which Michelle resides

so long as she resided at a specific address in Leander, Texas. The parties acknowledged that they

1 This matter qualifies for an accelerated disposition under Supreme Court Rule 311(a) (eff. Jul. 1, 2018). Based on the date the notice of appeal was filed, a decision in this case was originally due on November 20, 2025. However, because both parties requested multiple extensions of briefing deadlines and the complexities of the issues involved in this appeal, we find good cause to extend the deadline. See Ill. Sup. Ct. R. 311(a)(5).

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both “currently” resided in Texas. It also stated procedures for when each parent would take J.S.

out of Texas, requiring notice and travel information to the other parent, and included a provision

stating that “[w]hile the parties agree to reside within reasonable proximity of each other, neither

parent shall permanently move [J.S.] from the State of Texas or a distance within Texas more than

twenty-five (25) miles from [J.S.’s] current primary address…” without consent or a court order.

¶5 The parties agreed that the circuit court of Cook County had jurisdiction over the parties

and the subject matter. The Allocation Judgment also provided that J.S.’s home state was Texas

under the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”). It contained a

provision that “[b]oth parties agree that the appropriate jurisdiction and venue for the litigation

and resolution of issues related to the allocation of parental responsibilities and parenting time ***

is the Circuit Court of Cook County.” Finally, it stated that “[t]his Agreement shall be construed

under the laws of the State of Illinois” and that “[t]he parties agree that the Circuit Court of the

State of Illinois [sic] shall retain exclusive and continuing jurisdiction over this cause to enforce

or modify” the Allocation Judgment.

¶6 The record shows that over the next year, very little happened in this case. The parties did

not file any substantive pleadings or motions and the court entered no substantive orders, including

no orders for temporary child support or maintenance.

¶7 Rather, approximately a year and a half after Michelle filed her counter-petition, on

October 10, 2023, John filed a response, denying that he or Michelle were residents of Illinois, and

stating that both parties have been residents of Texas since approximately March 21, 2022, prior

to the filing of Michelle’s counter-petition. The same day, again through counsel, John filed a

motion to voluntarily dismiss his petition for dissolution of marriage under section 2-1009 of the

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Code of Civil Procedure (735 ILCS 5/2-1009 (West 2024)). He also filed a motion to dismiss

Michelle’s counter-petition under sections 2-104 and 2-301 of the Code of Civil Procedure (735

ILCS 5/2-104, 2-301 (West 2024)), arguing that the parties and their child moved to Texas on

March 21, 2022, and both parties were residents of Texas at the time Michelle filed the counter-

petition. John argued that the petition should be dismissed because Illinois lacked personal

jurisdiction over the parties as they lived in Texas. Alternatively, he argued that under the doctrine

of forum non conveniens, Illinois was an inconvenient forum given that the parties and a sizable

portion of their real property were located in Texas, and thus, the court should transfer the case to

Travis County, Texas.

¶8 Michelle objected to both motions and argued that the court had personal jurisdiction over

the parties when John filed this case and Michelle filed an appearance. She also argued that John

is barred from objecting to personal jurisdiction because he filed the case in Cook County,

judicially admitted in his petition that he and Michelle were residents of Illinois, filed a motion to

set a case management conference and participated in a pretrial conference, signed a Marital Estate

Jurisdiction Agreement (“Jurisdiction Agreement”) agreeing to litigate financial issues in the

divorce in Illinois, and accepted the benefits of the Allocation Judgment. She also argued that John

waived any objection to venue.

¶9 Michelle asserted that she and John signed the Jurisdiction Agreement in August 2022,

confirming that the circuit court of Cook County would resolve all financial matters between the

parties. Michelle averred in her affidavit that she would not have signed the Allocation Judgment

had John not signed the Jurisdiction Agreement because it was important to her that Illinois be the

exclusive jurisdiction and venue to decide the remaining issues. Michelle attached a copy of the

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Jurisdiction Agreement, which stated: “In exchange for the parties’ execution of the Allocation

Judgment *** as consideration hereto, *** the Parties, hereby bind, affirm and avail themselves

to the exclusive jurisdiction of Cook County, Illinois, for the purpose of resolving all financial

matters pertaining to their Dissolution of Marriage action.” It further stated that “[t]he execution

of this Agreement by the Parties shall act as a waiver of any right to object to jurisdiction of the

abovementioned action in the Circuit Court of Cook County, Illinois.”

¶ 10 The circuit court heard arguments on John’s motions and invited additional briefing on

several issues, including (1) whether either party met the statutory residency requirement in section

401(a) of the Act at the time of filing the petition and counter-petition; and (2) if neither party met

that requirement, whether the circuit court of Cook County was deprived of subject matter

jurisdiction over this case; (3) whether John judicially admitted residency in his petition; (4)

whether such a judicial admission can eliminate residency as an evidentiary issue; (5) whether

John can retract his judicial admission or whether the court was free to disregard it even if John is

not entitled to retract it. 2

¶ 11 John argued that the circuit court lacked subject matter jurisdiction over this case because

both parties had been living in Texas since March 2022 and did not meet the residency

requirements in section 401(a) of the Act. Section 401(a) provides in relevant part that “[t]he court

shall enter a judgment of dissolution of marriage when at the time the action was commenced one

of the spouses was a resident of this State … and the residence … had been maintained for 90 days

next preceding the commencement of the action or the making of the finding…” 750 ILCS

2 While John also raised the lack of personal jurisdiction in his motion to dismiss, he abandoned that argument in the circuit court, the court did not rule on it, and John does not pursue that argument on appeal. Thus, we need not address it.

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5/401(a) (West 2024). John also filed a motion for clarification or in the alternative, an extension

of time in which to file his motion for forum non conveniens. Michelle argued that section 401(a)

was not jurisdictional, but was merely a statutory requirement that the parties could, and did,

waive.

¶ 12 Following a hearing, on October 22, 2024, the circuit court found that the issue of residency

under section 401(a) was not a concrete fact, and that John’s statements regarding Illinois

residency were evidentiary, rather than judicial, admissions. The court then scheduled an

evidentiary hearing on the issue of the parties’ residency.

¶ 13 Michelle next filed a “Petition to Enforce Marital Estate Jurisdiction Agreement or to

Apply the Doctrines of Waiver and Estoppel to Bar John from Contesting Residency.” Michelle

argued that, by signing the Jurisdiction Agreement, John waived any challenge to whether the

parties met the residency requirement in section 401(a). Michelle sought a binding declaration that

the Jurisdiction Agreement was valid and enforceable and that the dissolution action would

proceed in Cook County.

¶ 14 The matter proceeded to a two-day evidentiary hearing on February 19 and 20, 2025, where

John and Michelle testified. The evidence established that, during the parties’ marriage, John,

Michelle, and J.S. lived in Glenview, Illinois as their primary residence through March 2022. In

2020 and 2021, they purchased two residences in Leander, Texas, which they used as vacation

homes.

¶ 15 The parties decided to end their relationship and seek a divorce on January 24, 2022.

Shortly afterwards, the parties discussed the divorce with J.S. and the possibility of both parties

moving to Texas so they could be close to each other. All three travelled to Texas in February

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2022 to tour schools for J.S., and Michelle placed a deposit for a new school after the visit.

Michelle also kept a deposit at J.S.’s school in Illinois for the 2022-2023 school year, but J.S. did

not return to that school.

¶ 16 John, Michelle, and J.S. all moved to Texas on March 21, 2022, with John living in one of

the parties’ Texas residences and Michelle and J.S. living in the other. J.S. began attending school

in Texas in late March 2022 and has continuously attended Texas schools since then. Michelle and

J.S. returned to Illinois a few times in April and May of 2022 for medical appointments for J.S.,

but the parties ultimately found new physicians in Texas.

¶ 17 John testified that he had not been back to Illinois between March 2022 and the start of the

evidentiary hearing, and that he considered their move to Texas to be permanent. He filed his

petition for dissolution in Illinois because he thought that owning the Glenview home was

sufficient to meet the residency requirement and because he thought that, since they had not lived

in Texas for six months, Illinois had jurisdiction over child custody issues. He testified that his

assertion in his petition that he and Michelle were Illinois residents was “an honest mistake.”

¶ 18 Michelle testified that John moved to Texas and she agreed to move to Texas “temporarily

as an extended stay to see how it goes,” but did not intend that stay to be permanent until at least

August 2022. In May 2022, she paid a deposit for J.S.’s school in Illinois for the 2022-2023 school

year because she planned to send him to that school. She flew back to Illinois on a regular basis

for medical appointments for J.S. in 2022, and testified that she still viewed the parties’ Glenview

residence as “home.” Michelle agreed that, at the time of the hearing in February 2025, she

considered herself a Texas resident. Michelle acknowledged that the Allocation Judgment stated

that the parties were required to live near each other in Texas, but testified that if the Allocation

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Judgment had not been entered, she would have moved back to Illinois with J.S. She stated that

she continued to maintain an active Illinois real estate license and driver’s license and had not

changed her voter registration from Illinois.

¶ 19 The parties also introduced evidence regarding the Jurisdiction Agreement. John testified

that he was first shown that agreement on August 18, 2022, a day after he signed the Allocation

Judgment. He testified that his understanding was that entering the Allocation Judgment was

contingent upon him signing the Jurisdiction Agreement. He stated that he felt like he had no

choice but to sign the Jurisdiction Agreement so the Allocation Judgment would be entered, which

he believed would be in J.S.’s best interest. John feared that if the Allocation Judgment were not

entered, Michelle would have taken J.S. back to Illinois. John testified that he did not intend to be

bound by the Jurisdiction Agreement and did not believe it was enforceable.

¶ 20 John testified that he signed the Jurisdiction Agreement under duress, but did not sign the

Allocation Judgment under duress. With respect to the Allocation Judgment, he signed what he

believed was best for his child. He was worried that Michelle would interfere with his relationship

with his son without the Allocation Judgment. John also stated that he felt like he was

“blackmailed” into signing the Jurisdiction Agreement. The parties stipulated that John’s attorneys

communicated with John about the Allocation Judgment and how that was affected by the

Jurisdictional Agreement. Michelle denied threatening John with any consequences if he refused

to sign the Jurisdiction Agreement, but stated that it was important for her that the financial portion

of the parties’ divorce was resolved in Illinois and that she would not have stayed in Texas if the

Jurisdictional Agreement had not been signed.

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¶ 21 In a written order, the circuit court granted John’s motion for voluntary dismissal of his

petition for dissolution, granted in part John’s motion to dismiss Michelle’s counter-petition,

denied Michelle’s motion to enforce the Jurisdiction Agreement and denied John’s motion for

clarification. The court found John’s testimony to be credible that the March 2022 move to Texas

was to be permanent, at least for him and J.S. The court made several factual findings about

Michelle’s testimony and her intentions and held that John defeated the presumption that Michelle

was an Illinois resident. The court found that neither John nor Michelle were residents of Illinois,

as both moved to Texas and abandoned Illinois residency in March 2022.

¶ 22 The court held that the residency requirement in section 401(a) of the Act was not optional

or waivable and that the court’s subject matter jurisdiction was limited by that residency

requirement. Because neither John nor Michelle was an Illinois resident, the court held that it

lacked jurisdiction over the case and dismissed the petitions. The court found that the Jurisdiction

Agreement was not enforceable because it could not confer jurisdiction upon the court where it

otherwise did not exist and the parties could not agree to resolve the divorce proceedings in Illinois.

The court further found that “even if the [Jurisdiction Agreement] could be found controlling,”

John signed it “under duress making it unenforceable,” finding John’s testimony to be credible.

Given its rulings on the other issues, the circuit court declined to address John’s forum non

conveniens argument. Michelle appealed.

¶ 23 First, Michelle argues that the circuit court should have found that John judicially admitted

Michelle’s Illinois residency in his verified petition for dissolution. She argues that this admission

satisfied the residency requirement in section 401(a) of the Act and removed the issue from

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controversy, and that circuit court therefore erred by reaching the issue of subject matter

jurisdiction.

¶ 24 Section 401(a) of the Act states, in relevant part, that a “court shall enter a judgment of

dissolution of marriage when at the time the action was commenced one of the spouses was a

resident of this State ***, and the residence *** had been maintained for 90 days next preceding

the commencement of the action or the making of the finding...” 750 ILCS 5/401(a) (West 2024).

In his verified petition, John alleged Michelle “is a resident of Illinois.”

¶ 25 A judicial admission is a “deliberate, clear, unequivocal statement[] by a party about a

concrete fact within that party’s knowledge.” In re Estate of Rennick, 181 Ill. 2d 395, 406 (1998).

It has the effect of “withdrawing a fact from issue and dispensing wholly with the need for proof

of the fact.” Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557-58 (2005). A judicial admission

differs from an evidentiary admission, which “may be contradicted or explained.” Rennick, 181

Ill. 2d at 406. Admissions in a verified pleading remain part of the record and “any admissions not

the product of mistake or inadvertence become binding judicial admissions.” Rynn v. Owens, 181

Ill. App. 3d 232, 235 (1989). We may affirm the circuit court’s judgment on any ground in the

record, “regardless of whether the lower court relied on those grounds.” Leonardi v. Loyola

University of Chicago, 168 Ill. 2d 83, 97 (1995).

¶ 26 We need not determine if John’s allegation in his verified petition could be a judicial

admission as to Michelle’s residency (under either an abuse of discretion or de novo standard of

review, see Crittenden v. Cook County Comm’n on Human Rights, 2012 IL App (1st) 112437, ¶¶

46-47 (discussing split of authority on the appropriate standard of review)) because, even if it was,

that allegation does not satisfy the residency requirement of section 401(a) of the Act, and

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therefore, did not withdraw a fact from issue. John’s allegation stated merely that Michelle “is a

resident of Illinois.” This did not establish that the parties met the residency requirement of section

401(a) because it does not allege that either of the parties had maintained residence in Illinois for

the requisite time period. 750 ILCS 5/401(a) (West 2024). Since any admission in John’s petition

as to Michelle’s residency did not remove the issue of whether the parties met the residency

requirement in section 401(a) from controversy, we find that the circuit court did not err in holding

an evidentiary hearing to resolve this issue. See Porter v. City of Chicago, 393 Ill. App. 3d 855,

864 (2009) (“Whether evidence should be admitted on a conceded fact is subject to the trial judge’s

discretion.”) (citing Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 462-63 (1992)).

¶ 27 Next, we address the circuit court’s order granting John’s motion to dismiss Michelle’s

counter-petition, finding that it lacked subject matter jurisdiction over the case because the parties

failed to satisfy the residency requirements of section 401(a) of the Act.

¶ 28 As set forth above, section 401(a) provides in relevant part that “[t]he court shall enter a

judgment of dissolution of marriage when at the time the action was commenced one of the spouses

was a resident of this State … and the residence … had been maintained for 90 days next preceding

the commencement of the action or the making of the finding” regarding irreconcilable differences.

750 ILCS 5/401(a) (West 2024). Section 403(a) specifically refers to the requirements of section

401(a) as “jurisdictional” and provides in relevant part: “The complaint or petition for dissolution

of marriage … shall minimally set forth: (1) the age, occupation and residence of each party and

his length of residence in this State; … (3) that the jurisdictional requirements of subsection (a) of

Section 401 have been met ....” 750 ILCS 5/403(a) (West 2024).

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¶ 29 The interpretation of section 401(a) is an issue of law that we review de novo. Miller v.

Department of Agriculture, 2024 IL 128508, ¶ 30. Similarly, the determination of whether the

circuit court had subject matter jurisdiction over a claim is a question of law we review de novo.

McCormick v. Robertson, 2015 IL 118230, ¶ 18.

¶ 30 In McFarlin v. McFarlin, 384 Ill. 428 (1943), the Illinois Supreme Court addressed the

“jurisdiction of the court” in a divorce action. Although the provision of the Act at issue in that

case involved venue, the court specifically addressed the court’s subject matter jurisdiction and

the residency requirement in the Act, holding that “[c]ourts of equity have no inherent power in

cases of divorce. The jurisdiction of such courts to hear and determine divorce matters is conferred

only by statute. While such courts may exercise their powers within the limits of the jurisdiction

conferred by the statute, the jurisdiction depends upon the grant of the statute and not upon general

equity powers.” Id. at 430-31 (citing Johnson v. Johnson, 381 Ill. 362 (1942); Smith v. Smith, 334

Ill. 370, 379-80 (1929)). The court referenced section 2 of the Act, a precursor to section 401(a),

which made the residence of the plaintiff in Illinois for a specified period before the filing of the

complaint a “jurisdictional prerequisite.” Id. at 430-31.

¶ 31 The McFarlin court explained that “[i]ts effect is to withhold from a court the power to

hear and determine divorce matters unless the factual situation in reference to plaintiff’s residence

brings the case within the statute.” Id. at 432. See also People ex rel. Christiansen v. Connell, 2

Ill. 2d 332, 341 (1954) (“The jurisdiction of such courts to hear and determine divorce matters is

conferred only by statute.”) (quoting McFarlin, 384 Ill. at 430); Strukoff v. Strukoff, 76 Ill. 2d 53,

60 (1979) (relying on McFarlin and holding “dissolution of marriage is entirely statutory in origin

and nature,” the jurisdiction of Illinois courts to hear divorce matters is conferred “only by statute,”

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and that the court’s jurisdiction “depends upon the grant of the statute and not upon general equity

powers.”); In re Marriage of Henry, 156 Ill. 2d 541, 544 (1993) (“Dissolution of marriage and

collateral matters such as child support are entirely statutory in origin and nature…”).

¶ 32 This court has repeatedly followed this holding. See In re Marriage of Passiales, 144 Ill.

App. 3d 629, 634 (1986) (“The plaintiff’s residence in a divorce case is necessary to confer subject

matter jurisdiction on the court.”). See also Davis v. Davis, 9 Ill. App. 3d 922, 929 (1973); Farah

v. Farah, 25 Ill. App. 3d 481, 487 (1975); In re Marriage of Gryka, 90 Ill. App. 3d 443, 445-46

(1980); Skilling v. Skilling, 104 Ill. App. 3d 213, 219 (1982); In re Marriage of Epting, 2012 IL

App (1st) 113727, ¶ 28; In re Marriage of Robinson, 225 Ill. App. 3d 1037, 1038 (1992) (“Where

a trial court is hearing matters relating to the dissolution of a marriage, it is not acting within the

unlimited jurisdiction conferred on it by the constitution but, rather, is limited to that granted in

the” Act); In re Marriage of Burkhart, 267 Ill. App. 3d 761, 764 (1994) (“A court must act within

the statutory authority granted to it in a dissolution of marriage action; it may not rely upon its

general equity powers.”); In re Marriage of Rhodes, 326 Ill. App. 3d 386, 388 (2001) (“The

authority of a circuit court to act in dissolution of marriage cases is conferred only by statute.”).

¶ 33 Michelle cites recent Illinois Supreme Court cases based on the Illinois Constitution of

1970 which hold that “[w]ith the exception of the circuit court’s power to review administrative

action, which is conferred by statute, a circuit court’s subject matter jurisdiction is conferred

entirely by our state constitution.” McCormick, 2015 IL 118230, ¶ 19 (quoting Belleville Toyota,

Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d. 325, 334 (2002)). “Under section 9 of article

VI of the Illinois Constitution, the jurisdiction of circuit courts extends to all ‘justiciable matters

except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of

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the General Assembly and to the ability of the Governor to serve or resume office.’” Id. ¶ 20

(quoting Ill. Const. 1970, art. VI, § 9).

¶ 34 “[W]hile the General Assembly may create new justiciable matters through legislation that

create rights that have no counterpart in common law or at equity, our court has made clear that

the establishment of a new justiciable matter neither extends nor constrains the court’s

jurisdiction.” Id. ¶ 23. Thus, as long as a matter brought before the circuit court is justiciable and

does not fall within the original and exclusive jurisdiction of the Illinois Supreme Court, the circuit

court has subject matter jurisdiction to consider it. Id. ¶ 20. See also In re M.W., 232 Ill. 2d 408,

417-426 (2009). While interpreting a provision of the UCCJEA, the McCormick court held that,

except in these rare situations, “the fact that the litigants or the court may have deviated from

requirements established by the legislature does not operate to divest the court of jurisdiction.”

McCormick, 2015 IL 118230, ¶ 22.

¶ 35 Michelle argues that McFarlin and its progeny are based on the prior Illinois Constitution

and a view of subject matter jurisdiction which has since been rejected by Belleville Toyota and

McCormick. Michelle urges us to essentially overrule these cases, including McFarlin, because

they are “simply no longer good law.” However, this court has no authority to overrule a decision

of the Illinois Supreme Court or declare that a supreme court decision is no longer controlling

authority. Blumenthal v. Brewer, 2016 IL 118781, ¶ 28. Rather, “‘[w]here the Supreme Court has

declared the law on any point, it alone can overrule and modify its previous opinion, and the lower

judicial tribunals are bound by such decision and it is the duty of such lower tribunals to follow

such decision in similar cases.’” Id. (quoting Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 38).

None of the recent supreme court cases cited by Michelle involve the sole issue presented here,

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whether the residency requirements of section 401(a) of the Act are jurisdictional, and none of

them overrule McFarlin, Strukoff or Henry. 3 Thus, while we question the continued viability of

McFarlin, Strukoff and Henry and their progeny in light of Belleville Toyota, McCormick, and

M.W., we are bound to follow them, particularly where the supreme court decided Strukoff and

Henry after the enactment of the Illinois Constitution of 1970. See Blumenthal, 2016 IL 118781, ¶

28. Accordingly, because we are bound by McFarlin, we agree with the circuit court that

compliance with the residency requirements in sections 401(a) and 403 of the Act are necessary to

confer subject matter jurisdiction on the circuit court.

¶ 36 As this issue is a matter of subject matter jurisdiction, it cannot be waived either by consent

of the parties or by contract. Belleville Toyota, 199 Ill. 2d at 333 (citing Currie v. Lao, 148 Ill. 2d

151, 157 (1992)) (“The issue of subject matter jurisdiction cannot be waived.”). Accordingly, the

circuit court did not err by declining to enforce the Jurisdictional Agreement on this ground.

¶ 37 Although Michelle argues that requirements under the Act can be waived, she does not cite

any case where a court allowed the parties to waive the residency requirements in section 401(a).

First, Michelle cites In re Marriage of Cohn, 93 Ill. 2d 190 (1982), but that case reaffirms

McFarlin’s and Strukoff’s holding that “dissolution of marriage is entirely statutory in origin and

nature, and that the court’s authority is limited thereby.” Additionally, Cohn discussed a different

provision of the Act and addressed waiver as a failure to timely object to the trial court’s error and

not the parties’ waiver of any requirements of the Act, as Michelle asks this Court to find in this

3 Although In re Marriage of Tronsrue, 2025 IL 130596, ¶ 34, provides “when the 1992 judgment of dissolution of marriage was entered, the circuit court possessed subject-matter jurisdiction because the circuit court had the power to hear and determine cases filed pursuant to the Marriage Act and divorce proceedings are justiciable matters,” the court did not address the specific residency requirements of section 401(a) applicable in this case nor did it expressly overrule McFarlin. Thus, McFarlin still controls here.

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case. In re Marriage of Mitchell, 181 Ill. 2d 169 (1998), is similarly distinguishable where the

court addressed a different provision in the Act involving child support orders and not the

residency requirements of section 401. Thus, we find these cases distinguishable.

¶ 38 Based on our ruling on this issue, we need not address the circuit court’s alternative holding

that John signed the Jurisdiction Agreement under duress.

¶ 39 Next, Michelle does not challenge the circuit court’s finding that John was a Texas resident

as of March 2022, but argues that the court’s finding that she abandoned her Illinois residence and

became a Texas resident in March 2022 was against the manifest weight of the evidence. We

disagree. To establish residency, physical presence and an intent to remain in that place as a

permanent home are required. Maksym v. Board of Election Com’rs of City of Chicago, 242 Ill. 2d

303, 319 (2011). Once residency is established, the test is not physical presence but abandonment.

Id. The residency is presumed to continue and the burden is on the contesting party to show that

the residency was abandoned. Id. Both the establishment and abandonment of a residence is

principally a question of intent which is determined from the person’s actions. Id. A witness is

competent to testify about their intent to abandon their residence, but “such testimony is not

necessarily conclusive.” Id.

¶ 40 The circuit court’s finding of residency in a divorce case is reversed only if it is against the

manifest weight of the evidence. Epting, 2012 IL App (1st) 113727, ¶ 23 (citing Rosenshine v.

Rosenshine, 60 Ill. App. 3d 514, 517 (1978)). “A finding is against the manifest weight of the

evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable,

arbitrary, or not based on the evidence presented.” Best v. Best, 223 Ill. 2d 342, 350 (2006) (citing

In re D.F., 201 Ill. 2d 476, 498 (2002)).

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¶ 41 Here, the circuit court found that John defeated the presumption that Michelle was a

resident of Illinois and that Michelle abandoned her Illinois residency as of March 2022. Michelle

acknowledges that the circuit court found the evidence as to her intent to abandon her Illinois

residency was “mixed,” and the circuit court’s finding that she had abandoned such residency by

March 2022 was necessarily based on its assessment of the parties’ testimony and credibility. The

circuit court heard witness testimony, resolved conflicts of fact and assessed the credibility of both

Michelle and John in making this determination. In a close case like this, “where findings of fact

depend on the credibility of witnesses, it is particularly true that a reviewing court will defer to the

findings of the trial court unless they are against the manifest weight of the evidence.” Eychaner

v. Gross, 202 Ill. 2d 228, 251 (2002).

¶ 42 While Michelle maintained that her move to Texas was temporary, there was sufficient

evidence supporting the court’s finding that Michelle’s move to Texas in March 2022 was

permanent, including that she moved into one of the parties’ Texas homes with J.S. and only

returned to Illinois for medical appointments and vacations, J.S. transferred to a school in Texas

toward the end of the school year, and J.S. obtained new medical providers in Texas shortly after

the move. The court also cited Michelle’s communications which established her intent to move

permanently and relied on the parties’ Allocation Judgment itself wherein they acknowledged that

they resided in Texas and that neither party could permanently remove the child from Texas. As

there was sufficient evidence to support the circuit court’s conclusion that Michelle abandoned her

Illinois residency and was a resident of Texas in March 2022, before the cross-petitions for

dissolution were filed, its finding was not against the manifest weight of the evidence.

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¶ 43 Thus, because both John and Michelle were residents of Texas and not residents of Illinois

during the residency time periods set forth in section 401(a) of the Act, the circuit court correctly

found that they did not meet the residency requirements of that section and dismissed Michelle’s

counter-petition for lack of subject matter jurisdiction.

¶ 44 Lastly, we address John’s motion to voluntarily dismiss his petition for dissolution pursuant

to section 2-1009(a) of the Code of Civil Procedure. 735 ILCS 5/2-1009(a) (West 2024). Section

2-1009(a) states in relevant part:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.”

Id. This “confers on plaintiffs an unfettered right to voluntarily dismiss their claims without

prejudice, upon proper notice and payment of costs, ‘at any time before trial or hearing begins.’”

Morrison v. Wagner, 191 Ill. 2d 162, 165 (2000) (quoting 735 ILCS 5/2-1009(a) (West 2024)).

The only exceptions are that the circuit court retains discretion to decide a previously-filed defense

motion that could result in a final disposition of the case if ruled upon favorably and when the

circumstances are such that dismissal under section 2-1009 would directly conflict with a specific

supreme court rule, in which case, the rule take precedence. Morrison, 191 Ill. 2d at 165.

¶ 45 On appeal, Michelle does not make any argument directed at the portion of the circuit

court’s order granting John’s motion to voluntarily dismiss his petition. Therefore, she has

forfeited any claim of error. See Ill. Sup. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued

are forfeited[.]”). Forfeiture aside, we affirm. See Leonardi, 168 Ill. 2d at 97 (we may affirm the

circuit court’s judgment on any ground in the record, “regardless of whether the lower court relied

on those grounds.”). Section 2-1009(a) allowed John to voluntarily dismiss his petition since no

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trial or hearing had begun at the time he filed his motion and neither exception applies. Also, in

the June 2025 hearing before the circuit court, John’s counsel confirmed that John would pay costs

to Michelle, as required by section 2-1009, pending confirmation of the amount. Therefore, John

satisfied the requirements of section 2-1009 and we affirm the portion of the circuit court’s order

granting John’s motion to voluntarily dismiss his petition without prejudice, subject to the payment

of costs. See 735 ILCS 5/2-1009(a) (West 2024).

¶ 46 We reiterate that McFarlin requires us to hold that compliance with section 401(a) of the

Act is necessary to confer subject matter jurisdiction on the court. With this ruling, however, we

do not condone the parties’ actions of filing this case in Illinois knowing that both the parties and

their minor child had moved to Texas before the case was even filed or waiting more than a year

and a half before raising the residency issue with the circuit court. Rather, we note that it is

important to address any issues with the pleadings and residency requirement at the earliest stage

of the case, before the court enters substantive orders involving the parties and/or children. Here,

John did not file a response to Michelle’s counter-petition where he denied their Illinois residency

until a year and a half after it was filed, despite the requirement that an answer to Michelle’s

counter-petition was due within 21 days, thus, unreasonably delaying resolution of this issue. See

Ill. Sup. Ct. R. 182(b) (eff. Jan. 1, 1967) (“Answers to and motions directed at counterclaims shall

be filed by parties already before the court within 21 days after the last day allowed for the filing

of the counterclaim.”).

¶ 47 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 48 Affirmed.

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